Case No. VSA-0057, 25 DOE ¶ 83,009 (OHA Apr. 5, 1996)

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* The original of this document contains information which is subject to withholding from disclosure under 5 U.S.C. 552. Such material has been deleted from this copy and replaced with XXXXX's.

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Opinion of the Director

Case Name: Personnel Security Review

Date of Filing: February 21, 1996

Case Number: VSA-0057

This Opinion concerns the eligibility of XXXXX ("the individual") for access authorization under the regulations set forth at 10 C.F.R. Part 710, Subpart A, entitled "Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material."<1>The Department of Energy's XXXXX Operations Office (DOE/XXXXX) rejected the individual's request for access authorization under the provisions of Part 710. The individual subsequently requested a hearing before a DOE Hearing Officer pursuant to 10 C.F.R. § 710.21. On January 25, 1996, the Hearing Officer issued an Opinion recommending against reinstating the individual's access authorization. See XXXXX Operations Office (Case No. VSO-0057), 25 DOE ¶ 82,786 (1996) (the January 25 Opinion). On February 21, 1996, the individual filed a request for review of the Hearing Officer's Opinion pursuant to 10 C.F.R. § 710.28. This Opinion considers whether, on the basis of the regulations and the record before me, the individual's access authorization should be reinstated.

I. Background

The provisions of 10 C.F.R. Part 710 govern the eligibility of individuals who are employed by or are applicants for employment with DOE or its contractors, agents, DOE access permitees, and other persons designated by the Secretary of Energy for access to

classified matter or special nuclear material. Part 710 generally provides that "[t]he decision as to access authorization is a comprehensive, common-sense judgment, made after consideration of all relevant information, favorable or unfavorable, as to whether the granting of access authorization would not endanger the common defense and security and would be clearly consistent with the national interest." 10 C.F.R. § 710.7(a).

On August 11, 1995, the DOE/XXXXX issued a Notification Letter to the individual informing him that information in the possession of DOE created a substantial doubt concerning his eligibility for access authorization. The Notification Letter specified two areas of derogatory information: (i) the individual deliberately misrepresented, falsified or omitted significant information from two Questionaires for Sensitive Positions (QSP), from a Personnel Security Questionnaire (PSQ) and during a Personnel Security Interview (PSI) (see 10 C.F.R. § 710.8(f)["Criterion F"]) and (ii) the individual has engaged in unusual conduct tending to show that he is not honest, reliable or trustworthy, or which furnishes reason to believe that the individual may be subject to pressure, coercion, exploitation, or duress, which may cause the individual to act contrary to the best interests of the national security (see 10 C.F.R. § 710.8(l)["Criterion L"]). The concerns raised in the Notification Letter were based on the individual's admittedly false statements that he received a Bachelor of Science degree in mechanical engineering from XXXXXXXXX University in 1982. The letter also informed the individual of his right to a hearing regarding these issues.

The individual requested a hearing in order to resolve the issue of his eligibility for access authorization. That hearing was held on November 29, 1995. The individual was represented by counsel and testified on his own behalf. No other witnesses were called by either side. During the course of this proceeding, the DOE presented uncontested evidence that throughout the individual's twelve year employment by a DOE contractor at the XXXXXXXXXXXXXXXXXXXXXXXXX, he falsely represented to the DOE that he had received a Bachelor's Degree in Mechanical Engineering from XXXXXXXXX University in 1982.<2> He made these assertions in his original 1982 PSQ, as well as in 1991 and 1993 QSPs, and finally in a 1993 PSI. Only when asked for a transcript demonstrating that he had received a degree, did the individual admit his falsification. After his employment was terminated by the XXX contractor in 1994, the individual returned to XXXXXXXXX, completed his course work, and received his Bachelor of Science degree. Subsequently, the individual applied for a position with a DOE subcontractor at XXXXXXXXXXXXXXXXXXXXXXXXXXXXX, for which a security clearance was needed. DOE/XXXXX rejected his application for reinstatement of access authorization, based on the individual's prior falsehoods.

On January 25, 1996, the Hearing Officer issued an Opinion in which she found that the individual: (1) deliberately falsified significant information provided to DOE Security; (2) failed to mitigate the falsehood or show that he had been rehabilitated or reformed; (3) might be inclined to make false statements or omit significant information in the future; and (4) engaged in behavior (falsification) which demonstrates that he is not honest, reliable or trustworthy, and furnishes reason to believe he may be subject to coercion. Accordingly, the Hearing Officer found that the individual's access authorization should not be reinstated since she was unable to conclude that the individual had resolved the doubts regarding his ability to safeguard classified information or uphold security regulations.

On February 21, 1996, the individual's request for review was received by the Office of Hearings and Appeals (OHA). The following day, the OHA received the individual's statement of issues ("Statement"). The Office of Security Affairs (OSA) declined an opportunity to respond to the individual's submissions. See Memorandum from Edward J. McCallum, Director, Office of Safeguards and Security, to Director, OHA (March 1, 1996). On March 1, 1996, the administrative record of this proceeding was closed.

II. Analysis

Under 10 C.F.R. § 710.28(a), either the Office of Security Affairs or the individual involved may file a request for review of a Hearing Officer's opinion with the OHA Director. In considering requests for review, I will generally confine my inquiry to those issues raised in the statement or response. The regulations provide that, under limited circumstances, I may consider additional information which was not before the Hearing Officer. 10 C.F.R. § 710.28(c); 10 C.F.R. § 710.29(b)(2). In the present case, neither party has submitted any additional evidence. Accordingly, the only issues before me are the contentions advanced by the individual in his Statement.

A. Whether the Hearing Officer Displayed a Bias and/or Prejudice

The individual claims that the Hearing Officer displayed a bias and/or prejudice by what he considers unnecessary negativity and criticism in the January 25 Opinion. The individual views the Hearing Officer's use of such phrases as "may be subject" and "possibly" as indicative of her prejudiced judgment. I do not agree and find no evidence of prejudice on the part of the Hearing Officer.

The individual's argument appears to be based on a misapprehension of the nature of access authorization and the standard of proof in this case. The duty of the Hearing Officer is to determine whether the granting of access "would not endanger the common defense and security and would be clearly consistent with the national interest." 10 C.F.R. ¶ 710.7(a). This standard implies that there is a strong presumption against the granting or restoring of a security clearance. See Dep't of Navy v. Egan, 484 U.S. 518, 531 (1988) ("clearly consistent with the national interest" standard for the granting of security clearances indicates "that security determinations should err, if they must, on the side of denials"); Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991) (strong presumption against the issuance of a security clearance). Underlying the system of access authorization is the policy judgment that the agency can never be completely confident that access holders will always act to protect national security. However, national security would be gravely damaged if the DOE had to wait until someone actually breached security regulations before his clearance could be revoked. Thus, in a field replete with uncertainty, the most that can be done is to identify those in certain risk categories as being ineligible to hold access authorization. However, even within those risk categories, reasonable judgments about the particular danger presented by a given individual must be made. These reasonable judgments are not made with scientific precision and can include the use of the rather vague phrases complained of by the individual, "may be subject" (used in Criterion L) and "possibly." I therefore do not find the use of such phrases to be indicative of any prejudice.

Further, the individual asserts that the Hearing Officer treated his receipt of his college degree in an overly critical manner. I find that assertion to be untrue, since the Hearing Officer noted that she considered the individual's action to constitute some effort towards rehabilitation. Merely because the Hearing Officer also found that the individual had failed to sufficiently mitigate the falsification does not mean she treated the individual's action in obtaining the degree negatively or in a biased manner. The individual further states that he could have taken no other action which would mitigate his falsification aside from receiving his degree. I also reject this argument, since the individual could have voluntarily admitted to XXX that he had not received his degree, see Footnote 3, or at the very least taken a leave of absence to complete the degree requirements. He did neither. He also could have showed his rehabilitation from falsification by freely admitting to his new employer at DOE/XXXXX the circumstances surrounding his termination. Since he took none of those actions, it is simply untrue that the individual took all possible steps to mitigate the falsification. Thus, I find that the Hearing Officer did not display any bias or prejudice in her opinion.

B. Whether the Hearing Officer Failed to Make a Comprehensive, Common-Sense Judgment

The individual next charges that the Hearing Officer failed to judge the facts of his case in a comprehensive, common sense manner. After examining the record, I find that the Hearing Officer's conclusions in this case are well-supported by the facts and reflect the type of common-sense opinion envisioned under 10 C.F.R. § 710.7(a). In this particular case, the risk presented concerns the individual's admitted falsification on several occasions. Generally, those who have shown themselves willing to falsify or omit significant information in response to questions from DOE Security are considered unacceptable risks. See Personnel Security Hearing (Case No. VSO-0041), 25 DOE ¶ 82,775 (1995) (request for review pending) (failure to report employment outside DOE, judgments against the individual, delinquent financial obligations); Personnel Security Hearing (Case No. VSO-0005), 24 DOE ¶ 82,753 (1995) (drug use); Personnel Security Hearing (Case No. VSO-0002), 24 DOE ¶ 82,752 (1995)(failure to report marijuana arrests, drug involvement, and failure to list children); Personnel Security Hearing (Case No. VSO-0001), 24 DOE ¶ 82,754 (1994) (insurance, mortgage and bank fraud). "The security program is based on trust, and once an individual has breached that trust, then there is a question as to whether that individual can be trusted to comply with the security regulations." Personnel Security Hearing (Case No. VSO-0013), 25 DOE ¶ 82,752 at 85,515 (1995) (quoting security specialist).

Moreover, the Hearing Officer's Opinion in this case is well-supported by the facts in the record. Not only did the individual falsely represent on four separate occasions that he had received a college degree, he did not admit his falsification until he was finally asked to produce a transcript. Only when the individual was figuratively forced into a corner, did he admit that he had not received his degree.<3>Even worse, the individual continued to omit significant facts from information provided DOE after his termination by the XXX contractor. Although it seems clear that his employer at XXXXXXXXX would be vitally interested in the reason for his termination at XXX, he did not inform his employer of that reason because he "did not feel it was necessary to tell them the details." Hearing Tr. at 23.<4>

The individual claims that he has mitigated the falsification charges and shown rehabilitation because he finally completed his bachelor's degree at XXXXXXXXX. I agree with the Hearing Officer that if the individual had voluntarily chosen to complete his degree prior to termination at XXX, some mitigation might be shown. However, it appears highly doubtful that the individual ever would have finished his degree if he had not been fired by XXX. The mere showing that he had completed the degree after his firing does not obliterate the concerns raised by his falsification over the prior twelve-year period. Further, the individual continued to falsify regarding his degree status even after he claims to have made significant lifestyle changes, including a commitment to complete honesty, beginning in February 1992. See Hearing Tr. at 30-31. Despite having the opportunity to admit his wrongdoing in an April 3, 1992 interview with Office of Personnel Management investigators, as well as during his June 1992 QSP, the individual chose not to do so. See Personnel Security Hearing (VSO-0044), 25 DOE ¶ 82,780 at 85,709 (1995) (individual's failure to disclose drug involvement after substance abuse rehabilitation considered evidence of lack of reformation under Criteria F and L).

The individual also contends that the Hearing Officer's refusal to give weight in her deliberations to eight letters authored by third parties is evidence of her failure to make a comprehensive, common-sense judgment. These unsworn written statements in the record were from the individual's former XXX colleagues and generally attested to the individual's good performance on the job and to his trustworthiness. I reject the individual's contention that the Hearing Officer treated this material improperly. First, as the Hearing Officer correctly noted, an individual's competency to perform his job is not necessarily relevant to that person's ability and commitment to protect national security. See Personnel Security Hearing (Case No. VSO-0027), 25 DOE ¶ 82,764 at 85,599 n.7 (1995); Personnel Security Hearing (Case No. VSO-0005), 24 DOE ¶ 82,753 at 85,530 (1995). Second, insofar as these letters refer to the individual's truthfulness and reliability, these portions are only entitled to "such weight as the circumstances warrant." See 10 C.F.R. 710.26(h). Here, the Hearing Officer did not ignore this evidence, but instead carefully examined it and determined its evidentiary value. See Personnel Security Hearing (Case No. VSO-0015), 25 DOE ¶ 82,760 at 85,571 (1995). I agree that the evidentiary value of these letters is de minimis. First, none of the former co-workers was available for examination and cross-examination under oath, or to have their credibility judged. Second, the statements fail to indicate that the individual ever told his colleagues of his extensive and significant falsehoods. Therefore, the Hearing Officer had no means to gauge the effect this knowledge might have on the co-workers' high opinions of the individual. Thus, while hearsay evidence such as these letters may be admitted as evidence in these proceedings under 10 C.F.R. § 710.26(h), the Hearing Officer was not required to accord the letters any evidentiary weight. Accordingly, I find that the Hearing Officer made a comprehensive, common-sense judgment in this case as required by 10 C.F.R. § 710.7(a).

C. Whether the Hearing Officer Incorrectly Examined the Case Retrospectively in Determining the Possibility of Coercion

The individual asserts that the Hearing Officer incorrectly focused on the individual's past in finding that the individual was previously subject to coercion and that he therefore may be subject to coercion in the future. Although I note that the Hearing Officer did not need to make any finding with respect to coercion,<5>the finding that she did make is well-supported by the evidence. Specifically, the fact that the individual actually lost his security clearance and his job as a result of the falsehood demonstrates that the individual had a strong interest in concealing his lack of a degree, and succumbing to that temptation, was susceptible to coercion during the entire period of falsification. With respect to the possibility of coercion in the future, the Hearing Officer agreed with the individual's contention that there is now little likelihood of the individual's being subject to coercion as a result of the falsehood at issue. Rather, the Hearing Officer made her finding about possible future coercion only because she determined that the individual had unsuccessfully shown mitigation or rehabilitation from falsification. She took into account the individual's extensive pattern in this area, as shown by his falsifying on four separate occasions to the DOE, each time while sworn to tell the truth, and his recent omission of significant information from materials filed with his current employer. Accordingly, I find that the facts in this case amply support the Hearing Officer's conclusion that the individual's clearance should not be restored.

III. Conclusion

I have thoroughly considered the record of this proceeding, including the submissions of the parties and the evidence and testimony presented at the XXXXXXXXXXXXXXXXX hearing convened in this matter. In resolving the question of the individual's eligibility for access authorization, I have been guided by the applicable factors prescribed in 10 C.F.R. § 710.7(c). After due deliberation, it is my opinion that the individual's access authorization should not be reinstated since I am unable to conclude that such reinstatement would not endanger the common defense and security and would be clearly consistent with the national interest. 10 C.F.R. § 710.27(a).

George B. Breznay

Director

Office of Hearings and Appeals

Date:

[On May 16, 1996, a final determination was made by the Director, Office of Security Affairs, to deny the individual's Department of Energy access authorization.]

<1>/ An access authorization is an administrative determination that an individual is eligible for access to classified matter or special nuclear material. 10 C.F.R. § 710.5. Such authorization will be referred to in this Opinion as an access authorization or a security clearance.

<2>/ The individual had been granted a security clearance at XXX.

<3>/ Even at the hearing, the individual continued his pattern of falsification. He claimed that he had voluntarily brought his falsehood to the attention of the DOE. Transcript of Hearing at 12, Case No. VSO-0057 (hereinafter cited as "Hearing Tr."). However, it is clear that he only admitted his falsehood when DOE Security finally requested his transcript from XXXXXXXXX (to which he initially responded that he "should be able to come up with it"). See December 6, 1993 PSI at 2 (five days after request for transcript); Hearing Tr. at 20-21. Merely because the individual eventually corrected the falsification does not mean that his misrepresentation was not deliberate and significant. See Personnel Security Hearing (Case No. VSO-0041), 25 DOE ¶ 82,775 at 85,672 (1995).

<4>/ The individual's counsel has attempted to diminish the significance of his client's falsification by arguing that the instant case was comparable to a person's putting a middle initial instead of a middle name on a QSP. The individual's counsel further described the falsification at issue as "puffing." Hearing Tr. at 25, 27. This minimization is highly disturbing, since it indicates that the individual has failed to appreciate the seriousness of his conduct.

<5>/ The individual was charged under Criterion F, which does not mention coercion, and under Criterion L, which refers to the possibility of coercion as only one of the possible grounds on which to deny access authorization.